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Negotiation Special Report #1

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Negotiation Editorial Board

Board members are leading negotiation
faculty, researchers, and consultants
affiliated with the Program on
Negotiation at Harvard Law School.

Max H. Bazerman
Harvard Business School
Iris Bohnet
Kennedy School of Government,
Harvard University
Robert C. Bordone
Harvard Law School
John S. Hammond
John S. Hammond & Associates
Deborah M. Kolb
Simmons School of Management
David Lax
Lax Sebenius, LLC
Robert Mnookin
Harvard Law School
Bruce Patton
Vantage Partners, LLC
Jeswald Salacuse
The Fletcher School of Law and Diplomacy,
Tufts University

About Negotiation
The articles in this Special Report were previously published in Negotiation,
a monthly newsletter for leaders and business professionals in every field.
Negotiation is published by the Program on Negotiation at Harvard Law School, an
interdisciplinary consortium that works to connect rigorous research and scholarship
on negotiation and dispute resolution with a deep understanding of practice. For more
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James Sebenius
Harvard Business School
Guhan Subramanian
Harvard Law School and
Harvard Business School
Lawrence Susskind
Massachusetts Institute of Technology

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Michael Wheeler
Harvard Business School

Negotiation Editorial Staff

Academic Editor

Guhan Subramanian
Joseph Flom Professor of Law and
Business, Harvard Law School
Douglas Weaver Professor of
Business Law, Harvard Business
School
Editor

Katherine Shonk
Art Director

Heather Derocher

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Dealing with Difficult PeoPle
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PRO GR A M ON N E G O T I AT ION

1. Get your head in the game.

Like top athletes, smart negotiators confront the cognitive and psychological errors
that could keep them from performing at their best.

n 2000, 18-year-old Matt Harrington was widely considered the

most promising pitcher in the Major League Baseball (MLB) draft. The

Colorado Rockies chose him as their seventh pick and then sweetened the pot
after Harrington, his parents, and his agent, Tommy Tanzer, rejected the teams
first offer. On behalf of his client, Tanzer turned down the Rockies final offer of
$4 million over two years, though it was a typical offer for a seventh-pick player.
After a disappointing season in the independent leagues, Harrington
entered the 2001 MLB draft, where the San Diego Padres made him the 58th
overall selection. On the advice of his new agent, Scott Boras, Harrington
rejected an offer of $1.25 million over four years and a $300,000 signing bonus.
In 2002, following another lackluster season in the independent leagues,
Harrington did poorly in the MLB draft and turned down less than $100,000
from the Tampa Bay Devil Rays.
In 2003, the Cincinnati Reds drafted Harrington in the 24th round and
offered him little more than the opportunity to play; again talks fell through.
In 2004, the New York Yankees drafted Harrington in the 36th round but
passed on making him an offer.
After failing to receive any offer in the 2005 draft, Harrington became a
free agent. In 2006, he received a minor-league contract from the Chicago Cubs,
but he was released before the 2007 season began. He continues to play for
independent-league teams, earning about $1,000 per month, and works other
jobs during the off-season.
Matt Harrington holds the dubious distinction of being the longest holdout
in the history of the MLB draft. His string of botched negotiations ensured that
his career ended before it could even begin.

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PRO GR A M ON N E G O T I AT ION

The mistakes Harrington and his negotiating team made are spectacular
as a whole, but considered one by one, they are not unique. In their book,
Judgment in Managerial Decision Making (Wiley, 7th ed., 2008), professors
Max H. Bazerman of Harvard Business School and Don A. Moore of Carnegie
Mellon University present Harringtons thwarted baseball career as
a cautionary tale to illustrate the decision-making errors that affect virtually
all negotiators.
In negotiation, we unwittingly operate under a number of systematic and
predictable cognitive biases on a regular basis. Many of these errors in thinking
result from our tendency to put too much trust in our intuition. Here we present
three of the most common mistakes that Bazerman and Moore have identified
and suggest a number of ways to keep this faulty thinking from ruining your most
important talks.
Mistake No. 1: Viewing negotiation as a fixed pie. Negotiators often falsely
assume that their interests are directly opposed to those of their counterparts.
The prevalence of competition in our society, ranging from sports to university
admissions to corporate promotion systems, can lead us to view many other
situations as win-lose. For example, too many negotiators assume that the pie of
resources is fixed in size when, in fact, opportunities exist to expand the pie by
creating value.
Whats more, researchers have found that the belief in a fixed pie causes
negotiators to devalue any concession their adversary makes. Unfortunately,
Matt Harrington and his agents succumbed to the tendency to view the other
sides alleged best offer with too much suspicion. They also neglected to explore
the possibility of a value-creating trade, such as accepting the salary offered and
negotiating performance-based bonuses if Harrington played as well as
he expected.
Solution: Share information. The simplest way to break through the fixedpie mindset in a negotiation is to disclose information to your counterpart.
In particular, try to provide information that could lead to wise tradeoffs. If a
customer complains about your prices, break down your costs for her and ask
whether she is willing to make concessions on delivery time or other issues

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PRO GR A M ON N E G O T I AT ION

in return for lower prices. Typically, the discoveries you reach jointly will
outweigh the risk that the other side will take advantage of the information
you disclose.
Mistake No. 2: Anchoring on the first offer. Harrington and his family fell

victim to another common cognitive bias: they were overly affected by the first
number that entered the negotiation. Harringtons first agent, Tommy Tanzer,
told MLB teams with high draft choices that Harrington would require at least
a $4.95 million rst-year signing bonusan unrealistic amount that scared off
seven teams in the draft. This high anchor created expectations in the minds of
Harrington and his family that could not be supported.
Initially, the Harringtons stood by Tanzers hard bargaining. Only later did
they come to understand that they had hired an inexperienced agentand file a
lawsuit against him for botching the deal.
Solution: Reject anchors. Unprepared negotiators are far more likely to fall
into traps, such as inappropriate anchors, than their prepared counterparts.
When you come to the table unprepared, you put yourself at a distinct dis
advantage. Set concrete goals for the negotiation in advance so you wont be
swayed by others influence tactics and vivid stories.
In addition, keep in mind that your thinking will tend to be more intuitive
and less rational when youre pressed to make snap decisions. Dont allow other
negotiators to force you to give an answer right away. Instead, schedule breaks
between negotiating sessions that give you time to think and evaluate.
Mistake No. 3: Escalating commitment. After wising up about Tanzer, why
did the Harringtons make the same mistake year after yearrejecting decent
offers in favor of much worse alternatives?
When Tanzer urged his 18-year-old client to turn down the Rockies
multimillion-dollar deal, he unwittingly set up his client for a string of failed
negotiations. According to Bazerman and Moore, negotiators have a tendency
toward irrational escalation of commitmenta strong psychological need to
justify their prior decisions and behaviors, both to themselves and to others.
After youve invested a great deal of time and energy in a course of action, its
difficult to know when to quit.

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PRO GR A M ON N E G O T I AT ION

Many of us would rather remain committed to a losing strategy than admit

were throwing good money after bad. As for Harrington, by turning down one
disappointing draft offer after another, he committed himself more deeply to
doing better the next year, even as the odds of that happening dropped out
of sight.
Solution: Dont dwell on the past. Thoughts about the sunk costs youve
invested can keep you plodding forward long after you should quit a negotiation or
settle for a disappointing deal. Yet economists tell us that past investments should
rarely affect our decisions about the future. At each decision point during your
talks, make sure you have a sound basis for escalating your commitment to a deal.
Adapted from When Your Thoughts Work Against You, first published in the
Negotiation newsletter (October 2008).

2. Manage team dynamics.

When you are trying to pull your team together, youll need to carefully navigate
group negotiations.

ow do you get the attention of negotiating partners who seem

intent on running off to greener fields? Thats the question Dan Beebe, the

commissioner of the Big 12 college athletics conference, faced as his league

threatened to splinter apart.
A rush on the field. Beebes troubles began on June 10, 2010, when the
University of Colorado abandoned the Big 12, lured away by the Pacific-10.
Larry Scott, the Pac-10s new commissioner, was on a mission to launch a league
TV network by acquiring member schools in new geographic regions, according
to the New York Times.
A day later, the University of Nebraska also decamped from the Big 12,
joining yet another league, the Big Ten. The Big 12 was down to 10 members
a number that immediately threatened to go down by half. Lining up behind
the University of Texas, the Big 12s moneymaking powerhouse, were Texas

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PRO GR A M ON N E G O T I AT ION

Tech University, the University of Oklahoma, and Oklahoma State University,

attracted by the Pac-10s promises of sky-high television revenues. Meanwhile,
Texas A&M University, another Big 12 member, was said to be flirting with
the Southeastern Conference as well as the Pac-10. The other five members of
the Big 12 faced the prospect of scrambling to find new homes in other leagues.
Hit hard by the economic crisis, universities have put pressure on their
athletic divisions to ramp up revenues. In this climate, the long-predicted
prospect of college athletics conferences merging into four 16-team superconferences, structured around lucrative TV deals rather than traditional
rivalries and geography, suddenly seemed imminent.
The playbook changes. On June 14, though, the game of musical chairs
came to an abrupt end. The University of Texas announced it would stay in the
Big 12, as did its four followers.
There were a number of reasons for the schools change of heart. First,
and most notably, Commissioner Beebe promised them between $14 million
and $25 million each in TV revenue per season (with the highest sum going
to Texas), about double their 2009 TV earnings. Texas also gained the right to
launch a potentially lucrative Longhorns TV network. Beebe had negotiated
with the Big 12s TV networks, ABC/ESPN and Fox, for promises of generous
renegotiation terms in the years ahead. These future TV deals were viewed as
critical to winning over University of Texas President Bill Powers and keeping
the conference intact.
Second, the five schools that would have been left in a tattered Big 12
offered to give Texas, Texas A&M, and the University of Oklahoma their share
of the reported $32 million in departure penalties that Nebraska and Colorado
owed for abandoning the conference.
Third, a number of influential individuals without a dog in the hunt
including business executives, athletic directors, and network executives
quietly lobbied Texas and the other schools being pursued to stay put, a National
Collegiate Athletic Association (NCAA) source told ESPN.com. These concerned
outsiders reportedly warned the universities that the Pac-10s expansion deal was
against their best interests. The group also was said to have helped Beebe with his
TV negotiations.
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PRO GR A M ON N E G O T I AT ION

Finally, Texas made 11th-hour demands that turned out to be a deal

breaker for the Pac-10. Given its plan to build its own TV network, the Pac-10
refused to let Texas keep its local network rights. Nor would the Pac-10 give the
school the extra sweetener it desired in revenue sharing, a source told the Times.
Having gone down to 10 teams, the Big 12 is expected to have to forfeit
its traditional championship game, in accordance with NCAA rules. But under
Beebes leadership, the league succeeded in keeping storied rivalries intact while
also appeasing its members financiallyat least for the time being.

How to inspire team loyalty

1 Do a side deal or two. Commissioner Beebe understood the power of

money to influence the mutinous universities. Through side deals with

ABC/ESPN and Fox, he secured promises of TV contracts that rivaled
the Pac-10s offer.
2 Exploit patterns of deference. The University of Texas was the clear

leader of the Big 12 schools that were threatening to defect. Aware of

this fact, Beebe concentrated his efforts on winning over Texas in the
expectation that the others would line up behind its decision.
3 Ask for a sacrifice. The five universities that risked being abandoned in

the Big 12 stepped up financially to help keep the league united. Such
sacrifices demonstrate goodwill and team spirit.
4 Enlist new players. The shadowy group that worked to try to hold the

Big 12 together may have strongly influenced the final outcome. If your
counterparts wont listen to you, recruit outsiders they respect to argue
your case.
The Near-Collapse of the Big 12: Holding a Winning Team Together,
first published in the Negotiation newsletter (September 2010).

3. Gain a competitive edge.

To triumph in cutthroat situations, such as negotiations where agents are present,
youll need to tap new sources of strength.

how me the money! That refrain from the 1996 movie Jerry Maguire,
shouted by a football player to his agent, continues to echo through U.S.

professional sports negotiations today. A public arena, enormous piles of cash,

and even bigger egos combine to make sports negotiations a unique context. Yet

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PRO GR A M ON N E G O T I AT ION

anyone who has negotiated through agents, faced a competitive atmosphere, or

lacked strong deal alternatives can learn a lot from team athletics.
Why are sports talks so tough? In his chapter First, Lets Kill All the
Agents! in Negotiating on Behalf of Others (Sage, 1999), Harvard Business
School professor Michael Wheeler analyzes the key features that can make sports
negotiations so contentious. Here are three of them:
1. The presence of agents. In recent decades, the rise of players unions,
collective bargaining, and growing revenue streams from advertising and broadcast
fees gave players more leverage than ever beforeand created a greater need for
experts to negotiate athletes increasingly lucrative and complex contracts. Agents
can add value by matching players with the right teams and insulating them from
subpar offers and hard-bargaining tactics, according to Wheeler.
But because sports agents typically have relationships with many different
teams and players, and earn a portion of their clients salaries (typically 4%
to 10%), they face significant conflicts of interest. Sports agents are routinely
accused of keeping players in the dark during contract talks and focusing on
player salary to the exclusion of other deal features that might please their
clients, such as a great location or options for contract extensions.
For reasons such as these, a small number of athletes choose to negotiate
on their own behalf. Former Major League Baseball (MLB) pitcher Curt
Schilling successfully negotiated an $8 million incentive-laden one-year contract
extension with the Boston Red Sox for himself, only to sit out the entire 2008
season with a shoulder injury. On his blog, Schilling wrote in 2007 that at some
point in your career, an agent becomes baggage.
2. Lack of alternatives. Consider the saga of baseball player Matt Harrington,
described in the first article in this report. As we noted, for four years straight, the
pitcher entered the MLB draft. Year after year, negotiating through different agents,
Harrington turned down offers from MLB teams. As Harrington got older, the
offers got worse, falling from a promise of $4 million over two years to little more
than the chance to play in the majors.
The story illustrates a prime feature of most professional sports deals: a lack
of strong outside alternatives. In most negotiations, if talks with one counterpart
dont go well, we can walk away and deal with someone else. But in the major
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PRO GR A M ON N E G O T I AT ION

U.S. team-sports leagues, including MLB, the National Football League, and the
National Basketball Association, players enter the system through a draft that
requires them to negotiate with one particular team. For most junior players,
holding out for a better deal means sitting out the seasonnot an appealing
career option. Only when athletes have served their team for a set number of
years are they eligible to become free agents and negotiate with other teams.
3. No zone of agreement. In negotiations outside the realm of sports, parties
typically see value in negotiating with each other only if a zone of possible
agreement, or ZOPA, exists. If youve decided to pay no more than $15,000 for a
new car, you wont bother visiting your local Porsche dealership.
Yet agents and sports teams often begin their negotiations miles apart.
Instead of dealing in the ZOPA, according to Wheeler, they deal in the
NOPAthe realm of no possible agreement. In a 1995 study, Wheeler and his
colleagues David Lax and James Sebenius tested this theory by observing how
actual National Hockey League (NHL) general managers behaved in a simulated
NHL salary negotiation. Almost all the pairs, playing the role of players agent
and general manager, started the negotiation with a large gap in their bargaining
range. That is, those acting as agents demanded much higher salaries for their
players than those playing managers were willing to offer.
In NOPA negotiations where the only alternative is to walk away (or, for
senior players in some sports, to let an arbitrator decide your fate), parties on
both sides of the table concentrate on getting the other party to budge, notes
Wheeler. Under these conditions, negotiation becomes nothing more than a
matter of hoping the other guy blinks first.
From competition to collaboration. If youve faced some of the same
challenges that plague sports negotiations, these four tips can help you strive for
greater collaboration and trust:
1. Manage your agent. In a chapter in Negotiating on Behalf of Others, Brian
S. Mandell argues that athletes who negotiate through agents need to take a
number of steps to guard against agent incompetence and conflicts of interest.
This advice applies to all negotiators who allow others to speak for them. First,
give your agent clear instructions regarding your long-term goals and your

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PRO GR A M ON N E G O T I AT ION

range of interests. Second, limit your agents authority to make commitments

on your behalf. Third, make sure that your agent consults with you throughout
the negotiation process. Fourth, try to align your agents compensation with
your interests by structuring a payment scheme that rewards him for creating
value at the table. Finally, verify your agents statements by reaching out to your
negotiating counterpart. Even if youre not sitting at the table, you still have a
right to speak with the other side. Heres one more tip: if your agent wont follow
these instructions, find a new agent or consider representing yourself.
2. Insist on expanding the pie. Whether youre negotiating on your own or
through an agent, you are likely to periodically encounter negotiators who persist
in haggling over a single issuetypically price. How can you convince someone
to discuss ways to create more value for both parties? First, reduce some of the
external pressures on your negotiation. If youre facing a tight deadline, try to
extend it. If youre being closely monitored by an audience, such as members
of your organizations or the media, work on making your negotiations more
private. At the table, discuss the benefits of viewing each other as collaborators
rather than as rivals.
3. Analyze the market. Examining each others constraints and broader market
forces can help negotiators move from a NOPA to a ZOPA. In 2005, the NHL
enacted a collective-bargaining agreement that placed an overall salary cap tied to
league revenues. As a consequence, players and their agents have had to lower their
expectations of what some NHL teams can afford to pay. Similarly, business negotiators
need to consider the larger economic forces in which they are working. In the midst of
a recession, it might be unrealistic for you to expect customers to accept a significant
price increase as part of your contract renegotiations, even if they did last year.
4. Create better alternatives. Occasionally, it may seem as if everything is
riding on the outcome of a particular deal. But that kind of pressure can sabotage
even the best negotiators. When preparing for a negotiation that seems like a
once-in-a-lifetime opportunity, make a list of all the other options you might
explore if you dont succeed. By improving your sense of psychological power,
you set yourself up to perform at your best.
Becoming a Team Player: Lessons from Professional Athletics,
first published in the Negotiation newsletter (October 2009).

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C O N T I N U E Y O U R N E G O T I AT I O N L E A R N I N G

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